Reversing course, the government's premier health research agency has reinstated a medical safety expert who was fired after raising allegations of scientific misconduct and sexual harassment in federal AIDS research, his lawyer said Friday.
The National Institutes of Health's reinstatement of Dr. Jonathan Fishbein settles a two-year battle that prompted both congressional and federal investigations. It also drew attention to an entire class of researchers and safety experts the government initially claimed didn't deserve whistleblower protections.
Fishbein alleged he was fired for raising safety concerns in government AIDS research. NIH said he was fired for poor performance even though he had been recommended for a cash performance bonus just weeks before he was notified of his termination.
He was one of a few NIH whistleblowers whose plight was highlighted in Associated Press stories over the last year examining allegations of safety problems with federal AIDS research in the United States and Africa, sexual harassment of female NIH workers and the use of foster children to test AIDS drugs.
Fishbein was formally reinstated to a position of special assistant to the deputy director of NIH's National Institute of Allergy and Infectious Diseases, but he is unlikely to ever return directly to that office.
Fishbein is to look for a new assignment in government, but has been returned to the federal payroll, according to government officials
Fishbein's lawyer confirmed the rehiring.
"I can confirm that effective Dec. 12, 2005 that Jonathan Fishbein is reinstated and is now special assistant to the deputy director of NIAID," attorney Stephen Kohn said.
"The medical community owes a debt to Dr. Fishbein for his integrity and courageous efforts to ensure that humans are protected when they participate in drug trials," he said.
Numerous members of Congress, Republicans and Democrats alike, urged NIH not to fire Fishbein, saying he had raised important issues about the way patients are protected in government experiments.
Fishbein, an accomplished private sector safety expert, was hired by NIH in 2003 to improve the safety of its AIDS research.
He alleged that he was fired because he raised concerns about several studies and filed a formal complaint against one of the division's managers alleging sexual harassment of subordinates and a hostile workplace.
An administrative law judge originally ruled that Fishbein and hundreds of other doctors and medical safety experts like him had no whistleblower protections, like normal federal workers, because they were hired outside the civil service system as special employees at a higher salary.
The government subsequently reversed course and argued such workers should have some protections if they blow the whistle. NIH still proceeded to fire Fishbein.
An internal report to NIH chief Elias A. Zerhouni substantiated many of Fishbein's allegations, calling the agency's AIDS research division "a troubled organization" whose managers engaged in unnecessary feuding, sexually explicit language and other inappropriate conduct that hampered its global fight against the disease.
The review also concluded NIH's efforts to fire Fishbein gave the "appearance of reprisal." The report says no documentation was ever provided to Fishbein suggesting poor performance until after he complained about the safety in one sensitive AIDS study and filed a formal complaint alleging that the division's deputy director was acting unprofessionally with subordinates.
In addition, NIH's chief of AIDS research testified in a deposition this summer that the agency originally planned to transfer Fishbein to a different job in transplant and immunology research but decided instead to fire him when Fishbein filed an Equal Employment Opportunity Commission complaint
Fishbein's immediate supervisor "actually had a job for Dr. Fishbein lined up with DAIT (Division of Allergy, Immunology, and Transplantation) if he hadn't gone the route he had," Dr. Edmund Tramont testified.
"What do you mean, hadn't gone the route he had?," Fishbein's lawyer asked.
"When this all began, EEO complaints and all this other stuff, right? But we -- you know, that got known. And so the directing potential to move into these other positions didn't happen," he said.
In its stories over the last year, AP reported:
- One of NIH's AIDS study in Africa violated federal safety regulations.
- Senior NIH managers engaged in sexually explicit pranks and sent expletive-laced e-mails to subordinates.
- NIH-funded researchers used foster children to test AIDS drugs since the late 1980s, many times not providing a basic protection afforded by federal law and required by some states. A subsequent federal investigation concluded at least one of the research institutions in those studies failed to comply with federal safety regulations.